certain people do not have a right to rent, or live in, private residential accommodation as their only or main home

in order to avoid sanctions, landlords affected by the provisions must check that any adult occupier of residential accommodation they let out has a right to rent, and continues to have a right to rent

(from 1 December 2016) an occupier with no right to rent can be evicted without a court order in specified circumstances.

Who has a right to rent

Depending on their immigration status and which type of leave to enter or remain in the UK they have, people can have:

an unlimited right to rent

a time-limited right to rent

no right to rent.

The Home Office may also grant a discretionary right to rent (see Time-limited right to rent below).

Time-limited right to rent

A person has a time-limited right to rent if s/he:

has been granted leave to enter or remain in the UK for a limited period – this applies regardless of the reason for granting the leave and so includes those granted humanitarian protection, discretionary leave to remain, a study/work/family visa

has been granted a time-limited permission to rent by the Home Office. The Home Office may grant this permission, for example, to a person with an outstanding asylum or Article 3 European Convention on Human Rights claim, or an appeal against a refusal of such a claim (detailed information about who can be granted permission to rent is in the Short guide on right to rent).

No right to rent

A person has no right to rent if s/he:

does not have valid leave to enter or remain in the UK, and

has not been granted discretionary permission to rent by the Home Office.

When checks should be carried out

No right to rent checks are needed in respect of letting agreements that started before:

Checks may be required for agreements that started before these dates where a new letting is treated as arising (see below).

Pre-tenancy checks

Checks on a prospective occupier can be carried out at any time before the start of a new tenancy or licence agreement. When the prospective occupier has only a limited right to rent, the landlord/agent must ensure that the checks are carried out not earlier than 28 days prior to the start of the letting.[4]

Checks should also be carried out when someone wants to join the household after the start of the agreement, or in any other case that is treated as a new letting (see below).

In the case of prospective new occupiers, landlords are under no obligation to report applicants with no right to rent to the Home Office, provided they do not allow them to occupy their premises.

Individuals unsure about their immigration status should be referred to specialist immigration advisers (see below).

Follow-up checks on time-limited right to rent

Where accommodation is let to, or occupied by, an adult with a time-limited right to rent, a follow-up check must be carried out before the end of the ‘eligibility period’ – which is the latest date of:[5]

12 months after the previous check

when the occupier’s leave to enter or remain in the UK expires

the expiry of an immigration document.

For example, if a tenant has three month's limited leave, the landlord will not have to carry out a follow up check until just before 12 months since the previous check, even though the leave will have expired nine months earlier.

A landlord must check with the Home Office if a tenant has made a fresh application to vary or extend their leave in the UK, but has not had their documents back from the Home Office at the time of the follow-up check.

Treated as new letting agreements

The following circumstances are treated as the granting of a new letting agreement and the requirement to carry out right to rent checks will apply where, on or after commencement:[6]

the landlord consents to the assignment of the letting

a joint letting agreement is surrendered and a new joint one is granted to any of the original occupiers and any new occupier

the landlord consents to a variation of an existing agreement to allow the right of occupation to new adults

the letting is granted to a person outside the UK prior to their arrival on the undertaking that checks will be carried out upon arrival in the UK and before providing possession.

A tenancy that arises by operation of law or as the result of a tenant exercising a contractual right at the end of a fixed term is not a new letting.[7]

Who is required to carry out checks

In order to avoid civil or criminal sanctions, right to rent checks must be carried out by anyone letting out private residential accommodation in England. The requirement applies to:

private landlords letting self-contained premises

owners, tenants and other occupiers granting a licence to a lodger or sub-letting premises - this includes tenants and licensees of a local authority or private registered provider of social housing. Head-landlords can agree and confirm in writing that they, rather than their tenants/licensees, will carry out the checks on lodgers and sub-tenants[8]

agents appointed in writing by a landlord to take responsibility for complying with the scheme.

Landlords acquiring a property with sitting tenants/licensees

Where a landlord acquires a property with sitting tenants/occupiers, and the provisions for the checks apply, the new landlord must confirm with the original landlord that the necessary checks were carried out, retain evidence to that effect, and take on responsibility for any further follow-up check.

If there has been a breach of the requirements prior to a new landlord taking over, the ‘responsible landlord’ is the landlord at the time of the breach.[9]

How to carry out the checks

Pre-tenancy and follow-up checks must be carried out by checking and retaining copies of prescribed acceptable documents in the presence of the document holder.[10] Records of the date of the checks and copies of the documents must be kept for a period of 12 months after the end of the letting agreement.[11]

Guidance

an online right to rent tool which allows landlords and agents to see if and when checks must be carried out

the Right to rent document checks: a user guide which provides information about how to check acceptable documents and frequently asked questions. For further guidance on this, see also the Short guide on right to rent which also contains detailed information about the Home Office's discretion to grant a permission to rent to certain individuals with no right to rent

the codes of practice which contain full statutory guidance on how to carry out lawful immigration checks and avoid discrimination and sanctions

The Association of Residential Letting Agents (ARLA) has also developed a series of frequently asked questions (FAQs) to address specific issues likely to be encountered while carrying out the checks.

Windrush generation

The Home Office advises that migrants from Commonwealth Caribbean countries who settled in the UK before 1973 (often referred to as the ‘Windrush generation’), have lived here permanently since and have not been away for long periods in the last 30 years, have the right to rent. The Home Office has published guidance for landlords wishing to rent to such Commonwealth citizens who do not have documents to demonstrate their status. The guidance states that:

where a prospective tenant has resided in the UK permanently since before 1973 and has not been away for long periods of time, s/he has the right to rent a property

where a prospective tenant arrived in the UK after 1 January 1973 but before 1988, s/he may not have an automatic right to rent, however if the tenant provides information indicating that they were resident in the UK before 1988, the landlord should not refuse permission to rent and should use an on-line form to contact the Landlord Checking Service for further verification.

The guidance confirms that until 1 January 2021 there will be no change. Landlords and letting agents should continue to conduct right to rent checks in the usual way, generally by checking and making a copy of passport or identity card. This regardless of whether the UK leaves the EU with or without a deal. Landlords and agents will not need to check if new EU, EEA and Swiss tenants arrived before or after the UK left the EU, or if they have status under the EU Settlement Scheme or European temporary leave to remain.

New guidance on how to carry out right to rent checks from 1 January 2021 will be issued in due course.

Home Office verification service

A landlord or agent can request verification of an individual's right to rent from the Home Office, through the online Landlord Checking Service or by calling the Landlords' Helpline on 0300 069 9799, when that individual claims that:

her/his documents are with the Home Office

s/he has been granted permission to rent by the Home Office

s/he has an ongoing immigration application or appeal with the Home Office.

The individual must provide the landlord/agent with the Home Office reference number. If the Home Office does not respond within two working days from the request, the landlord/agent can treat this as if the Home Office had issued confirmation that the individual has a right to rent.[12]

Occupiers exempt from right to rent checks

Only adult occupiers living in private rented accommodation as their only or main home need to provide evidence that they have a right to rent in respect of that accommodation.

Children under the age of 18 are exempt from the checks, but landlords may need to verify their age.

they do not pay rent – this is defined as 'any financial transaction in the nature of rent'[14] and could include any services provided by the occupier in return for accommodation, but does not include a contribution for food or electricity/gas.

Lettings exempt from right to rent checks

Only private rented accommodation used as the occupier's only or main home is covered by the provisions.

local authority, PRPSH or other social housing allocation under Part 6 of the Housing Act 1996 (PRPSHs making direct lets through their own waiting lists must carry out the checks)

accommodation provided under Part 7 of the Housing Act 1996, including where the applicant is placed in temporary private rented sector accommodation or receives a private rented sector offer in discharge of the main housing duty

tenancies covered by section 160 Housing Act 1996 (this includes succession to a secure and flexible tenancy, assignment of secure tenancies under mutual exchange or following property adjustment order following relationship breakdown)

accommodation provided as a consequence of any duty or power placed on a local authority (eg under sections 17 or 20 of the Children Act 1989 or section 18 of the Care Act 2014)

accommodation provided to asylum seekers or former asylum seekers under the Immigration and Asylum Act 1999

care homes, hospital and hospices

non self-contained accommodation in hostels and refuges that are managed by a public authority, housing association, voluntary organisation or charity

mobile homes covered by the Mobile Homes Act 1983

tied accommodation

holiday lets

accommodation provided by a vocational training provider to an individual in connection with that training

student halls of residence or other accommodation provided by universities, charitable bodies or private organisations which is used wholly or mainly for the accommodation of students

private-sector tenancies where a student has been nominated to occupy the accommodation by a higher or further education institution. This exemption does not extend to any sub-letting or lodging arrangements made by the student or to members of the student's household

fixed-term tenancies for a period of seven years or more that do not contain a break clause

long leases.

Landlord action after follow-up check

Where a follow-up check reveals that an existing occupier's time-limited right to rent has expired (the legislation calls this a 'post-grant contravention') the landlord or agent must report the presence of a disqualified occupier to the Home Office online or by phone, providing full details of the occupier and premises concerned.[16]

If a landlord allows a person whose right to rent has ended to remain in occupation after the end of the eligibility period, or after receiving a disqualification notice from the Home Office in respect of an occupier (even if the occupier is within their eligibility period), they may be guilty of a criminal offence.[17] A landlord will have a defence to criminal charges if s/he takes 'reasonable steps within a reasonable period of time' to terminate the agreement.[18]

Penalties and defences

Failure to conduct the checks and the subsequent provision of accommodation to a person with no right to rent may lead to a civil or criminal penalty.

Civil penalties

Renting to a person without a right to rent may lead to a fine of £1000 per tenant and £80 per lodger, rising respectively to £3000 and £500 for repeated non-compliance.[19]

Referral and penalty notice

When the Home Office suspects that a landlord or agent has rented accommodation to a person without a right to rent, it may serve a referral notice with an information request for evidence that the necessary checks were carried out. The Home Office will then send a penalty or a ‘no action’ notice with the reasons for its decision.

A penalty notice must contain prescribed information which includes why it considers the landlord/agent is liable for a penalty and the amount of the penalty. They have 28 days to object to the penalty or the amount of the penalty. The Home Office must then set out its decision in an objection outcome notice to be issued within 28 days. After the Home Office has issued its decision the landlord/agent has 28 days to appeal to the county court.[20]

Defences

It is a full defence (or statutory excuse) for landlords and agents to show that they have carried out the necessary checks when required and/or notified the Home Office in the case of a post-grant contravention. See above, 'When checks must be carried out'.

Guidance: civil penalties

Criminal penalties

From 1 December 2016, a landlord (or agent) can face criminal prosecution where:[21]

their residential premises are occupied by an adult without a right to rent, and

the landlord knows, or has reasonable cause to believe, that the adult has no right to rent; or

the landlord does not report the presence of a disqualified occupier to the Home Office at the end of the eligibility period.

If convicted the landlord can be fined and/or imprisoned. In addition, on or after 6 April 2018, a local authority can apply to a First-tier Tribunal for a banning order where a landlord (or agent) has been convicted.[22]

Defences

the adult whose time-limited right to rent has expired is still in their eligibility period

the landlord has taken reasonable steps to end the tenancy agreement where the eligibility period has expired and the occupier no longer has a right to rent

(if the Home Office has served a ‘no right to rent’ notice in respect of the occupier, including an occupier whose eligibility period has not expired), the landlord has taken reasonable steps to terminate the tenancy agreement within a reasonable period of time after being informed that their occupier has no right to rent.

Guidance: taking reasonable steps within a reasonable time

Statutory guidance sets out that reasonable steps relate to the different routes a landlord may take in order to lawfully end a tenancy (or licence).[24]

Reasonable steps can include mutually agreeing a surrender, or agreeing that where some of joint occupiers have a right to rent and others do not, that those without a right to rent move out and a new tenancy is granted to the remaining occupiers.

The guidance suggests that four weeks may be a reasonable period of time for a landlord to try to reach an informal agreement to terminate the tenancy of a disqualified tenant, before taking formal eviction action. The guidance also states that it may be reasonable for a landlord to wait for a fixed term to end, or to activate a break clause to serve notice, where any required notice would expire within three months of the landlord becoming aware that a disqualified person is in occupation.

Transitional protection

started before 1 February 2016 in England (or 1 December 2014 in the pilot areas)

was renewed on or after the above dates, but started before

is varied at any time without entering into a new agreement – this includes succession, and assignment by way of a property adjustment order made by the court.[26]

Where a landlord (or agent) allows premises to be occupied by an adult they know to be disqualified, a criminal offence applies where the tenancy agreement was entered into before or after 1 December 2016.[27] If a landlord fails to notify the Home Office that there are disqualified adults in occupation at the end of an eligibility period which ended after December 2016, this will also be a criminal offence - there is transitional protection where the eligibility period ended up to 1 December 2016.[28]

Security of tenure and eviction

From 1 December 2016, the Immigration Act 2016 amends the Housing Act 1988, the Rent Act 1977 and the Protection from Eviction Act 1977 so as to reduce the security of tenure of occupiers who do not have a right to rent. The procedure for eviction depends on whether:

all the occupiers lack a right to rent

one or more - but not all - of the occupiers lack a right to rent.

Fast-track eviction where all occupiers have no right to rent

From 1 December 2016, landlords may use a ‘fast track’ eviction process where all of the occupiers under a tenancy or licence have no right to rent.[29] This can only be used after the Home Office has given a disqualification notice (or notices) to the landlord that complies with section 33D(2) of the Immigration Act 2014.

A ‘section 33D(2) notice' must:

identify the occupier (or all of them, including children of the household, if there is more than one), and

state that the occupier or occupiers are disqualified from renting because they have no right to rent.

The Home Office notice ‘converts’ the occupier’s or occupiers’ status to that of an excluded occupier and allows the landlord to end the agreement by serving a minimum of 28 days’ notice, on a prescribed form.[30] The disqualification notice must be attached to the prescribed form.

The conversion to excluded occupier status applies to all forms of tenure in the private rented sector (save those that are excluded occupiers already).

The landlord’s notice takes effect as an order of the High Court. At the expiry of the landlord's notice, the landlord can evict the occupier without a court order and without applying to the court for bailiffs to enforce possession, but must do so lawfully and peaceably.

If the occupiers have not left on expiry of the landlord's notice and the landlord wishes to avoid the risk of committing an offence under the Criminal Law Act 1977, s/he can apply for permission to enforce it through a writ of possession issued in the High Court. A copy of the Home Office 'section 33D(2) notice' must be filed at court with any application for permission to issue the writ of possession.[31] See High Court enforcement for more information about writs of possession.

At least one occupier has a right to rent

Where at least one occupier has no right to rent, the landlord may lawfully take possession depending on the security of tenure status of the occupier. Additional grounds for possession have been added to the relevant schedules of the Rent Act 1977 and Housing Act 1988.

Depending on the occupier's security of tenure see the following pages for details about how a landlord may gain possession:

Where a landlord evicts a tenant/licensee without following the correct procedure applicable to the particular type of tenancy or licence, this will be an illegal eviction (see What is illegal eviction for more information).

Discrimination and codes of practice

A landlord or agent who refuses to let premises to, or check only individuals that s/he thinks might not be British or EEA national, or not having a right to rent because of their colour, ethnic or national origins will unlawfully discriminate.

The government has published codes of practice to provide statutory guidance to landlords and agents on how to operate non-discriminatory lawful checks.

Specialist immigration advice

Only advisers authorised by the Office of the Immigration Services Commissioner (OISC) are allowed to provide advice on immigration matters, such as obtaining leave to enter and remain in the UK, or challenging a decision of the Home Office - find OISC regulated advisers in your area.

The Joint Council for the Welfare of Immigrants (JCWI) runs a free and confidential Helpline for undocumented migrants on Mondays, Tuesdays and Thursdays, from 10am to 1pm, on 0207 553 7470. It is specifically aimed at people who are unsure about their immigration status and require specialist immigration advice on whether they can obtain permission to rent from the Home Office, the strength of their claim to regularise their status in the UK, and how to take their case further.

Legal challenges against the scheme

Following a successful challenge against the lawfulness of the Scheme brought by JCWI, in which the Residential Landlords Association, the Equality and Human Rights Commission and Liberty where permitted to intervene, on 1 March 2019 the High Court has declared the Scheme unlawfully discriminatory and sections 20-37 Immigration Act 2014 incompatible with Article 14 ECHR in conjunction with Article 8 ECHR. The Court has also declared that a decision by the Secretary of State to extend the Scheme in Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of the public sector equality duty under section 149 Equality Act 2010.[32]

The government has been granted permission to appeal. In the meantime, the provisions remains in force and there are no immediate changes to the operation of the policy. Landlords and letting agents are still obliged to conduct Right to Rent checks as required in legislation.

In obiter comments relating to a connected case, the High Court stated that the service of a ‘no right to rent’ notice by the Secretary of State, while amounting to direct discrimination on the basis of race and nationality under the Equality Act 2010, was justified by provisions of the Immigration Act 2014 and not covered by section 29 of the Equality Act 2010.[33]

Wales

The information on this page applies only in England. Go to Shelter Cymru for information relating to Wales.